Section One of the Fourteenth Amendment to the United States Constitution, passed by a Republican Congress in June of 1866 and ratified in July 1868, states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The amendment is one of three ratified between 1865 and 1870 during Reconstruction to guarantee the rights of black Americans and end the political and social inequities forced upon under Democratic Party hegemony. For this reason the articles are known collectively as the “Reconstruction Amendments.”
On January 20, 2025, Donald Trump signed an executive order Protecting the Meaning and Value of American Citizenship. The order recognizes the historical context of the Fourteenth Amendment, which pertained to the postbellum situation and the situation of recently freed slaves, recognizing their birth in the United States as sufficient for citizenship. Section One thus, to borrow language from Trump’s executive order, “rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.”
Specifying categories not entitled to birthright citizenship, the order challenges the assumption of the blanket granting of citizenship to those born on American soil, a common law principle known as jus soli. “Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
Jus soli, or “right of soil,” originates in English common law, elements of which the United States inherited at its founding. However, the English themselves significantly moved away from birthright citizenship with the introduction of the British Nationality Act of 1981. This legislation shifted the emphasis to jus sanguinis, or “right of blood,” meaning that citizenship is now largely determined by the nationality of one’s parents rather than merely being born on British soil. Jus sanguinis is the standard for determining citizenship for most of the human population. This change was driven by efforts to address immigration concerns stemming from the nation’s former colonial empire and the evolving demographics following the decline of the British Empire. In other words, there is nothing controversial about excluding from automatic citizenship those born on national soil to parents who are not.
As expected, in one court or another, a federal judge in Seattle, US District Court Judge John Coughenour, in a brief 25-minute hearing, ruled that Trump’s order on birthright citizenship is “blatantly unconstitutional” and blocked it with a temporary restraining order. “It boggles my mind,” Coughenour opined. The Executive Order is not obviously unconstitutional, so what exactly boggles Coughenour’s mind is not apparent.
If Section One meant to cover anybody born on American soil is a citizen, then why are there exceptions? A person born in the US to a foreign diplomatic officer cannot be considered a US citizen at birth under the amendment. That’s because such persons are not under the jurisdiction of the United States but the jurisdiction of the country in which they hold citizenship. American Indians born in the US didn’t have citizenship until 1924 with the passage of the Indian Citizenship Act (the Snyder Act), which was signed into law by President Calvin Coolidge. They were born on American soil; why weren’t they automatically counted as citizens under the amendment? The answer is obvious: they weren’t the race with which the legislators who wrote the amendment were concerned. Before the Snyder Act, the Supreme Court ruled, in United States v. Wong Kim Ark (1898), that a person born in the United States to Chinese citizens legally residing in America and under the jurisdiction of US law automatically becomes a US citizen. However, there has been no ruling concerning the status of children born to illegal aliens or to those holding temporary visas residing in the United States. The federal judge’s ruling thus goes beyond the scope of precedent, wrongly assuming the matter as settled.
I am encountering a great deal of panic over Trump’s executive order on birthright citizens (and more broadly his executive order Protecting the American People Against Invasion). One of the items panicking them is Elie Mystal’s absurd essay in The Nation “A Line-by-Line Breakdown of Trump’s Birthright Citizenship Executive Order.” Mystal falsely claims that the order “attempts to cancel the 14th Amendment to the US Constitution.” Adding, “Getting rid of constitutional amendments via executive order is new, and, for me at least, ‘the worst.’” This appears to be what caused a long-time friend of mind to declare on Facebook that Trump was canceling the Fourteenth Amendment and thus bringing about an end to the American Republic. Nothing could be further from the truth.
The subtitle of Mystal’s essay, a pull quote—“Almost every sentence of the order is wrong, misleading, or flagrantly unconstitutional”—is ironic. Nearly every sentence of Mystal’s essay presents no rebuttal, just goofy rambling. Perhaps this is to match his cultivated persona. Simply apply makeup and the man becomes full clown. Have I resorted to ad hominem? Listen to this take on Trump taking charge of the dire circumstances Biden left us with and judge for yourself: “In a flurry of lawless, unconstitutional, racist, bigoted, violent, and, in some cases, plainly stupid executive orders and pardons, Trump set his reign of terror in motion.” Reign of terror? This is the alternative clown universe in which progressives like Mystal dwell. If you don’t also dwell in that universe, then you’re a “mouth-breathing racist.” (Remember when those objecting to waring diapers on their faces during the COVID-19 pandemic was described as “mouth-breathers”? Etcetera.)
Of course, as I already indicated, it was inevitable that Trump’s order would trigger judicial review. Many if not all of Trump’s other orders will. But those panicking can relax; neither an executive order nor legislative action outside the amendment-making process can remove or change a constitutional amendment. Even Mystal, who purports to be an expert on constitutional matters, acknowledges this elsewhere in his essay. The US Constitution can only be amended through a two-thirds vote in both the House of Representatives and the Senate, or by a constitutional convention, which in turn requires ratification by two-thirds of the states (today that’s 38 of 50). That includes repeal of an amendment or any alteration to it, both of which require a new amendment (see the prohibition amendments that uglify an otherwise magnificent document). No president or legislature can remove a right from a constitutional amendment. That requires judicial review—which in principle is all of them.
Consider that the First Amendment rights to free speech and publishing have no trammels. You won’t find anywhere in that amendment language concerning defamation, i.e., libel or slander. However, through legislative action or judicial review (the latter occurs in testing the constitutionality of the former) speech and publishing have been fettered in the case of defamation. Perhaps there should be no exception, but defamation law is the law of the land. The Fourth Amendment protection against illegal searches and seizures has been specified through judicial review, as well. Because of conceptual difficulties, such as reasonable suspicion and probable cause, and other matters, it has come before the courts and precedents have been established. This is true of all constitutional amendments—all are subject to judicial review. Indeed, this is true of all law in a democratic society considering the legal principle of stare decisis.
This is the reason the Supreme Court and lower federal courts exist in the first place: to review laws with respect to the Constitution and determine their scope and validity. Section 2 of Article III states: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.” Trump’s executive order is now moving through the federal courts. It will almost certainly be argued before the Supreme Court to determine its constitutionality. But to be clear, the matter of whether children born on American soil to those classes described in Trump’s executive order remains an open question. There is precedent in Trump’s favor. In Chae Chan Ping v United States (1889), the Supreme Court upheld the Chinese Exclusion Act, affirming Congress’s authority to regulate immigration, in particular its power to set immigration policy and to pass new legislation even if it overrode the terms of previous international treaties (the matter concerned the Burlingame Treaty). As such, the ruling limited the role of the judiciary in shaping immigration to the United States. Considering this, Congressional Republicans have just introduced a bill to codify Trump’s birthright citizenship order.
The bottom line is that the order is not “blatantly unconstitutional.” The education of the public on this matter is urgent business. The media depends on widespread ignorance of constitutional law, separation of powers, and judicial review to mislead the public to save the globalist project to erase borders and advance the managed decline of the American Republic.
freedom and reason 